I came across this photo reposted from L'Officiel Hommes Ukraine Nov. issue by Jens Ingvarsson. It is highly reminiscent of one thing ... Tom Ford's ad campaigns. This got me thinking about the copyrightability of subject matter. For photographs, their subject matters are so often relatively objective depictions of the real world that are freely viewable, quite often in the public domain, or owned by others. As such, the copyright protection that photographs enjoy is usually more limited than other works of art. Having said that, what about creative elements added by the photographer?
As we all know, for a work to be copyrightable in the US, it must be fixed in a tangible form and be an original work of authorship. Original means that the work was independently created by the author and that it possesses at least some minimal degree of creativity. Especially relevant for us is that originality may be founded upon factors such as choice of subject matter, timing, and selection of camera. Here, however, the recreation of sex appeal and simply, feeling reminiscent of Tom Ford's advertising theme certainly isn't enough to invoke a copyright issue, especially because the bar for originality is so low. A photograph will have copyright protection if it has a minimal level of originality, which requires more than “slavish copying” of the underlying material, and a successful action for infringement will only arise if the the allegedly infringing work is substantially similar to the original work with regard to its protected elements.
This brings me to a final point regarding copyrightability of photographs: influence is ok. There is the longstanding argument that every photograph is derived from its subject matter, which existed long before the photo was taken. As such, influence is deemed to be acceptable. See Tom Ford's Fall/Winter 2010 eyewear campaign influenced by Alfred Hitchcock's "The Birds." If TF had chosen an older man as his model and shot the a similar photo in black and white, the estate of Alfred Hitchcock may have had the grounds to sue. However, because Tom very obviously added creativity, he's in the clear, and plus, Tom Ford can do no wrong anyway [except for maybe his S/S 2012 collection]!